Yesterday, a dozen Democrat and Republican House members introduced the Stop Online Piracy Act. The bill, H.R. 3261, targets rogue sites that infringe on US intellectual property rights.
Debate over the Stop Online Piracy Act has already hit full throttle, but I’ll leave that for another day.
Today I want to “walk through” the bill so that readers and creators know exactly what is in it and what to expect if it passes. I’ve tried to keep the legalese to a minimum here. This is not meant to be a comprehensive look at every bit and piece of the bill, but hopefully I’ve hit all the major points.
If you look at the text of the bill, you’ll notice that there are several sections I haven’t mentioned below — provisions that increase criminal penalties for trafficking in inherently dangerous counterfeit goods, for example. I don’t mean to suggest these aren’t as important as the ones directly related to copyright enforcement.
Attorney General actions against foreign infringing sites
The first section of the bill applies only to foreign infringing sites — sites where the domain name is not registered within the US. The Attorney General may commence an action under this section if one of these sites is directed at the US (meaning it is used by US users, and the owner of the site would be subject to personal jurisdiction in a traditional infringement lawsuit), the owner of the site is committing or facilitating a criminal copyright offense, and the site would be subject to seizure if it were a domestic site (like the domains seized by ICE over the past year).
This suit would then be filed against the site operator personally. If the operator cannot be found or doesn’t live in the US, the Attorney General may file an in rem action against the site itself. The statute also details how notice of the suit must be served.
Once begun, the AG files for a temporary restraining order, a preliminary injunction, or a permanent injunction against the site, ordering it to stop its infringing activites. A court would issue these injunctions under the same rules that govern every federal lawsuit — with both parties presenting their case (except in the case of a temporary restraining order, which can be issued ex parte but is limited to 14 days) and the injunction issuing only if the AG meets its burden. A preliminary injunction, for example, requires establishing likelihood of success on the merits and irreparable harm (among other factors).
The AG can then, after approval by the court, serve court orders on specified entities, requiring specified actions by each entity. In all cases, the entities are only required to take “technically feasible and reasonable measures” to comply with the orders.
(1) An online service provider must prevent access by its subscribers to the infringing site, including preventing the domain name from resolving to the site’s IP address. The service provider is not required to modify its “network, software, system, or facilities” in order to do this, and its DMCA safe harbors are not affected.
(2) A search engine must prevent the infringing site from being served as “a direct hypertext link”.
(3) A payment network provider must prevent or suspend transactions between US customers and the infringing site from completing. The payment network provider has no continuing duty to monitor transactions after it has taken these steps.
(4) An Internet advertising service is required to prevent providing advertising services to or relating to the infringing site. Like payment network providers there is no continuing duty to monitor once the advertising service has put its measures into place.
What happens if one of the entities above doesn’t comply with the order? The AG can bring an action for an injunction against the provider to order it to comply. 1Under this section, the AG can also bring an action for injunctive relief prohibiting any entity that has knowingly and willingly offered a product or service designed or marketed for circumventing the measures taken by the above entities. The failure to comply must be knowing and willing, and this injunctive relief is the only legal remedy available here. 2A failure to comply with any injuction issued may result in contempt of court.
In addition, in this action, entities are given a defense against failure to comply if they can show they do “not have the technical means to comply with this subsection without incurring an unreasonable economic burden.”
Finally, any of the above individuals and entities may move to modify or vacate the orders at any time after they are issued. The court may grant this relief if it finds that the site at issue has stopped, or never was, infringing, or if “the interests of justice otherwise require” it.
This next section borrows the notice-and-takedown procedure of the DMCA and applies it to preventing profit from piracy.
Both foreign and domestic US-directed sites are subject to this section, but only if they are “dedicated to theft of US property.” The section defines this as either (1) a site that “is primarily designed or operated for the purpose of, has only limited purpose or use other than, or is marketed by its operator or another acting in concert with that operator for use in, offering goods or services in a manner that engages in, enables, or facilitates” copyright infringement or circumvention of technological measures; or, (2) a site where the operator has either remained willfully blind to a high probability of infringing acts occuring on the site or induced infringement through the site.
A copyright holder that has been harmed by one of these sites may serve a notice on payment network providers or Internet advertising providers that service the site. When a provider receives a notice, it is required to take the same technically feasible and reasonable measures described in the first section or reply with a counter-notification disputing the notice. As with the DMCA, copyright holders are liable for any monetary damages that may occur if they knowingly and materially misrepresent that a site is dedicated to the theft of US property.
If a provider serves a counter-notification or fails to comply with a notice under this section, the copyright holder can initiate an action very similar to the one the Attorney General can initiate under the first section of the bill. Court orders in this section are limited to the advertising and payment providers involved.
Sorry, Justin Bieber is still not going to jail under the House’s version of the Commercial Felony Streaming Act included in SOPA. The language is largely the same, but there is one key difference.
To be convicted for criminal copyright infringement, the government must prove beyond a reasonable doubt that the defendant acted willfully. Most courts have interpreted willfulness strictly: an intentional violation of a known legal duty. But a small number of courts have instead adopted a lower standard: the intent to do the acts at issue without knowledge that they constituted infringement. 3Prosecuting IP Crimes Manual. The lower standard has caused some worry, especially when it comes to criminal copyright statutes applied to online infringement.
SOPA takes care of this. It says:
Any person acting with a good faith reasonable basis in law to believe that the person’s conduct is lawful shall not be considered to have acted willfully for purposes of the amendments made by this section. Such person includes, but is not limited to, a person engaged in conduct forming the basis of a bona fide commercial dispute over the scope of existence of a contract or license governing such conduct where such person has a reasonable basis in law to believe that such conduct is noninfringing. Nothing in this subsection shall affect the application or interpretation of the willfulness requirement in any other provision of civil or criminal law.
The bill offers a lot to digest, and I’ll be sure to have more analysis in the coming weeks. My initial thoughts: this is a well-crafted bill, providing effective remedies against the narrow problem of rogue sites. Anyone who makes a living creating knows it’s impossible to stop all piracy — that’s been true since the beginning of copyright — but at the very least, our laws should be able to reliably prevent individuals and companies from profiting off of online piracy. And this bill promises to be a big step in that direction.
The House Judiciary Committee is scheduled to hold a hearing on the Stop Online Piracy Act on November 16, 2011.
|↑1||Under this section, the AG can also bring an action for injunctive relief prohibiting any entity that has knowingly and willingly offered a product or service designed or marketed for circumventing the measures taken by the above entities.|
|↑2||A failure to comply with any injuction issued may result in contempt of court.|
|↑3||Prosecuting IP Crimes Manual.|